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Jan Lodding
Amid serious challenges to the global non-proliferation regime and unmet expectations from the 2000 NPT Review Conference, the steadily growing number of contracting parties to additional protocols may still prove to be a relative success story in the present review cycle. The strengthened safeguards system, which will enable international inspectors far greater access to check on compliance, is poised to make verification of non-proliferation undertakings under the NPT more robust and effective, providing a more conducive environment for disarmament and non-proliferation. But this requires that more states adopt additional protocols to their safeguards agreements with the International Atomic Energy Agency (IAEA).
Two-thirds of the way through the present NPT review cycle, the outcome of the 2005 Review Conference is still too early to call, but most predict that it will be difficult to rediscover the common ground that produced the unexpectedly successful outcome of the previous Conference in 2000. There is likely to be a division of views on many major issues, with the nuclear-weapon states (NWS) focusing on terrorism and dealing with (selected) compliance issues and most non-nuclear-weapon states (NNWS) reiterating their call for transparent and irreversible nuclear disarmament. There are, however, some fundamental truths on which even the hardliners on either side would agree. One such truism is that disarmament and nonproliferation measures should be effectively verifiable. As Hans Blix, the former Director General of UNMOVIC, is often heard to say in the light of his own painful experiences: No verification at all is often better than flawed verification.
So how effective is verification pursuant to Article III of the NPT, which requires NNWS parties to place their entire nuclear programmes under IAEA safeguards?
The discovery of a clandestine weapons project inside the Iraqi nuclear programme in the wake of the first Gulf War in 1991 shocked the world. It also drew attention to the limitations of the traditional safeguards system of the IAEA given that, under Article III of the NPT, Iraq was ostensibly under full-scope safeguards. It was not the first time that calls had been made to strengthen NPT verification. But the Iraq case generated the political will necessary to set in motion an overdue technical overhaul and modernisation of the system whose roots were set in the Cold War era. The rules for on-site inspections needed to be more flexible (in particular at nuclear sites), IAEA inspectors required access to more information (including global transfers of items for weapons production), and new verification technology - first and foremost the analysis of samples for trace elements of nuclear material - needed to be added to the battery of tools routinely available to inspectors.
A number of the limitations of the 1970s system could be addressed through a more explicit interpretation of some of the provisions of the traditional comprehensive safeguards agreements. These included the right to conduct special inspections, the right of access to the UN Security Council and the importance of receiving design information at a very early stage. Arguably more important was a fundamental shift in inspector attitudes, featuring a much stronger focus on understanding states' nuclear programmes and identifying any irregular pattern or inconsistency that might indicate undeclared activities. It was this greater attention to discrepancies that led to the discovery, by the IAEA in 1993, of serious inconsistencies relating to the declared nuclear programme in the Democratic People's Republic of Korea (DPRK). This major achievement, something that the world's intelligence services had not been able to detect, has been accorded far too little credit.
As a consequence of the discoveries in Iraq and North Korea, the IAEA and its Member States came to the view that inspectors must be furnished with the legal authority to use additional safeguards measures to enable them more comprehensively to analyse and understand states' nuclear programmes. These new requirements were incorporated in a new legal instrument called the "Model Additional Protocol", which was approved by the IAEA Board of Governors in May 1997.1
With the implementation of the measures in the Model Additional Protocol, the stronger reinterpretation of elements of the traditional safeguards and the refocus towards the detection of any undeclared nuclear material and activities in participating states, the IAEA was equipped to take on the challenges of the 21st Century. A more effective and efficient safeguards system would deter cheaters and forever close the door on the option pursued by Iraq (i.e. to exempt nuclear material from safeguards control and use it clandestinely for nuclear weapons purposes). The Agency would be in a position to give comprehensive assurances not only that states' declarations were correct, but also regarding the absence of undeclared nuclear activities on their territory. As a result, the NPT would boast a verification system at least on a par with that of more recent effectively verified arms control treaties, such as the CWC and CTBT.
Standing in the way of this enhanced verification confidence, however, is a crucial legal obstacle. The strengthening of the safeguards system relies on states parties concluding and bringing into force additional protocols to their safeguards agreements, on the basis of the Model Additional Protocol. Without such protocols in force, the Agency's legal authority remains roughly where it was before 1991, with only the circumscribed system of routine safeguards inspections in place. As repeatedly stressed by the IAEA's Director General, Mohamed ElBaradei, in order to be able to give the required safeguards assurances, the Agency must be provided with the necessary legal authority.2
In view of the strong case and broad consensus in favour of strengthening the safeguards system, the rate of conclusion of additional protocols has been disappointing. More than six years after the approval of the Model Additional Protocol, only 38 states have such protocols in force (including one NWS, China). Out of 70 states with locations under routine safeguards, all but 20 have signed additional protocols, but far fewer have taken the further step of ratification.
In recent years, the IAEA Secretariat and a number of proponent states and NGOs have redoubled their efforts to refocus attention and expand adherence to the strengthened safeguards system through wider adherence to additional protocols and also to sign up the NNWS that have yet to conclude any NPT-related safeguards agreement (currently 45 state parties). Through targeted consultations, correspondence and national, sub-regional and regional seminars and workshops, these countries' officials are being informed about the strengthened safeguards system and its key role in nuclear disarmament and nonproliferation. Legal and technical assistance is also provided. The Agency has developed a Plan of Action to help guide efforts in this regard.3 The Plan makes the distinction between states with and without nuclear facilities under routine safeguards and between Members and non-Members of the IAEA. It identifies the policy, legislative, administrative and technical obstacles to concluding safeguards agreements and additional protocols facing those different categories of state, and proposes outreach approaches adapted for each group. Australia and Japan have long realized the importance of strengthened safeguards for both nonproliferation and nuclear trade and made wider adherence a key foreign policy objective. Other states - including France, Germany, Indonesia, Peru, Romania, South Africa, Sweden, the United States and Uzbekistan - have gradually joined in this work.
The efforts to encourage and facilitate the conclusion of further NPT safeguards agreements and additional protocols has received strong endorsement in successive UN General Assembly and IAEA General Conference resolutions and are now beginning to show results. Not since 1998 have there been as many countries signing additional protocols as last year, whilst 2003 set a record with 10 protocols actually taking effect in that one year. In 2004, that number is expected to more than double, with additional protocols entering into force for the 15 current EU States and three remaining accession states, plus the Republic of Korea, Ukraine, the United States and a host of other countries with varying degrees of nuclear activities. Meanwhile, Kazakhstan, Libya and a number of other states are poised to sign their protocols during this year. At the Thessaloniki Summit in June 2003, the European Union NNWS, which share a safeguards agreement to which EURATOM is also party, finally committed themselves to complete the cumbersome joint additional protocol entry into force procedure by the end of the year.4 The additional protocols for the EU will now enter into force once Euratom notifies the Agency that its requirements for entry into force have been met.5
In addition, outreach has been boosted by recent efforts to come to grips with the nuclear programmes of both Iran and Libya, which have brought worldwide attention to the conflict prevention potential of the additional protocol. There is now a general realisation that the application of the broader safeguards covered in the additional protocol would have helped prevent the recent stand-off with Iran. At its June session, the IAEA's Board unanimously called on Iran to conclude and bring into force an additional protocol without delay.6 Iran responded by signing the protocol shortly before Christmas last year, and both Iran and Libya have pledged to act as if their additional protocols were already in force. These developments have helped open the eyes of many to the importance of universal adherence to the strengthened safeguards system.
As the Model Additional Protocol gains further adherents, more and more states are recognising the importance of establishing comprehensive safeguards agreements with additional protocols as the new safeguards standard for verification under the NPT. This is generally seen as a necessary development and basis for creating a more conducive environment for nuclear disarmament and nonproliferation in the spirit of the NPT.
Article III of the NPT requires each NNWS to "accept safeguards, as set forth in an agreement to be negotiated and concluded with the IAEA in accordance with... the Agency's safeguards system, for the exclusive purpose of verification of the fulfilment of its obligations assumed under [the NPT]" (Author's italics). Based on this, some states are updating their interpretations of this provision and making the legal argument that since comprehensive agreements with additional protocols are becoming established as the prevailing norm of the safeguards system, these broader agreements now constitute the safeguards legally required under Article III.
Meanwhile, most nuclear supplier states are considering making safeguards agreements in accordance with the strengthened safeguards system a condition for supply of nuclear material and direct use items - at least in the case of countries whose nuclear programmes are of such sophistication that stricter controls are called for.
At the time of the 2000 NPT Review Conference only nine parties had implemented the additional protocol. In the agreed Final Document of the Conference, States Parties pleaded for improvement in this regard and it remains to be seen how well that call will have been heeded by the time of the next Review Conference in 2005. A reasonable prediction is that the number of contracting parties without NPT safeguards agreements will have been reduced from 54 to around 40 (including the two new accessions: Cuba and Timor Leste), and that additional protocols will have been concluded with close to 100 countries, at least two-thirds of whom will have their protocols in force. Some States, such as Cuba and Georgia, will have gone straight from having no comprehensive safeguards agreement to concluding an NPT safeguards agreement with the additional protocol.
To say that there is a mutually reinforcing relationship between nonproliferation and disarmament is stating the obvious. As a consequence, there can be no doubt that the widest possible adherence to the Model Additional Protocol would be a major step forward towards the accomplishment of the NPT's goals - including progress towards the achievement of an effectively verifiable nuclear-weapon-free world.
1. Reproduced by the IAEA as INFCIRC/540 (Corrected)
2. See, for instance, Mohammed ElBaradei' statement to the 47th General Conference (http://www.iaea.org/ NewsCenter/Statements/2003/ebsp2003n020.html)
3. Referenced in IAEA General Council Resolution GC(47)/RES/11, (op14), http://www.iaea.org/About/ Policy/GC/GC47/Resolutions/gc47res11.pdf
4. Declaration on Non-Proliferation of Weapons of Mass Destruction (http://www.eu2003.gr/en/ articles/2003/6/20/3121/)
5. The last three remaining EU states (Denmark, Italy and Ireland) notified the Agency regarding ratification last year. However Euratom - which is party to the three additional protocols for France, the UK and the NNWS - needs to provide a similar notification before the protocols formally can enter into force.
6. Statement of the IAEA Board of Governors of 19 June 2003 ( http://www.iaea.org/NewsCenter/ MediaAdvisory/2003/medadvise200372.html)
Jan Lodding is Senior Policy Officer with the IAEA Office of External Relations and Policy Co-ordination. Before rejoining the IAEA in 2001, he was responsible for nuclear weapons and missile policy in the Global Security Department of the Swedish Ministry of Foreign Affairs covering, among other things, the 2000 NPT Review Conference.
© 2003 The Acronym Institute.